CHAPTER 6 AIR QUALITY PERMITS
| Jurisdiction | United States |
(Mar 1981)
AIR QUALITY PERMITS
and R. Daniel Scheid
Popham, Haik, Schnobrich, Kaufman & Doty, Ltd.
Denver, Colorado
OUTLINE
I. INTRODUCTION.
II. PERMITTING NEW OR MODIFIED MINERAL RESOURCE PROJECTS.
A. Introduction.
B. PSD Requirements.
1. PSD Applicability.
a. Major Source
b. Major Modification
c. Suggestions and Examples
2. PSD Review Requirements.
a. Monitoring
b. BACT
c. Air Quality Analysis
i. Increment Analysis
ii. Class I Areas
iii. Miscellaneous Impacts
3. PSD Overview.
C. New Source Review in Non-Attainment Areas.
1. The Statutory Growth Ban.
2. The Interpretive Ruling (I.R.).
a. Major Source and Major Modification
b. Geographic Applicability
c. Growth Conditions Under the I.R.
i. LAER
ii. Certification of Compliance
iii. Emission Offsets
iv. Positive Net Air Quality Benefit
3. The Non-Attainment SIP.
a. Net Deduction in Emissions.
b. LAER and Certification of Compliance
c. SIP is "Being Carried Out"
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D. Visibility Regulations.
1. BART Requirements.
2. Integral Vistas.
3. Long-Term Strategy.
III. CONCLUSION.
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I. INTRODUCTION.
The Clean Air Act Amendments of 19771 and its administrative and judicial implementation and interpretation have created as much or more confusion and controversy as Congress sought to eliminate. After four years of battle and compromise, major portions of the program are beginning to emerge with some degree of clarity and predictability.2 This paper will attempt to outline the features of those programs applicable to mineral resource development. Unresolved areas of the law and regulations will be identified.
Resource development and planning must include early consideration of air permitting problems and possibilities. Often the solution to one type of permitting problem breeds another unforeseen impediment to development. Consequently, this paper strives to lay out a framework for analysis of air permitting requirements. For those readers with first-hand experience in air permitting, this paper will provide very little in the way of detailed consideration of specific requirements. Hopefully, however, the framework will provide assistance in analyzing and explaining air permitting requirements, consequences, and possibilities.
In this age of consumer awareness and rights, we are forced to isuue a solemn warning: CAVEAT EMPTOR! What Congress and EPA has given, they can certainly take away. The Clean Air Act is scheduled for renewal this year in Congress and may be significantly amended. Section 323 of the Act3 created a
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National Commission on Air Quality to monitor implementation of the Act and report its findings and recommendations to Congress. The report is due this month and is expected to recommend changes and options.4 The change in Administrations this year will also have unforeseeable ramifications. Consequently, the authors make no express or implied warranties for their product.
II. PERMITTING NEW OR MODIFIED MINERAL RESOURCE PROJECTS.
A. Introduction.
Any new or modified mineral project will probably be required to obtain permits and meet certain air pollution standards. Permits may be required for exploration, construction, and operations. Air pollution standards may become applicable through a permit condition or merely by general regulation or both. Requirements may be imposed by federal, state or local entities. Federal requirements imposed by the United States Environmental Protection Agency (EPA) should be viewed as minimum requirements.5 Pre-emption of federal law in the area of air pollution has been specifically limited to certain areas concerning mobile sources of pollution.6 Although the prevention and control of air pollution at its source is specifically recognized as the primary responsibility of states and local governments,7 EPA and any private citizen are given power to enforce requirements of the Act.8 Where States and local governments fail or refuse to implement or enforce minimum federal requirements, EPA has the power to promulgate enforceable requirements, take other remedial actions, or reassume control over the program.9 Should EPA
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neglect its responsibilities, citizens may seek mandamus10 or judicial review.11 Nonetheless, in most areas, air pollution programs are primarily administered by the states or their political subdivisions. Most permitting and emission limitation decisions are made at that level.12 Federal oversight and citizen review powers must not be forgotten, however.
The Clean Air Act, as amended, and EPA regulations implementing the Act set forth minimum requirements which apply to a mineral resource project. Each state will also have its own organic statute and regulations which must be analyzed and compared to federal provisions. Some local regulation of air pollution may occur, but it is not common outside major urban areas. The extent and severity of permissible local regulation must be determined under the laws of each state. The balance of this paper will deal with federal requirements arising under the federal Act.13
Federal air control programs should be conceptualized as occurring in three principal areas: ambient air pollution impacting health and welfare; national emission limitations on categories of new sources (NSPS); and national emission limitations on extremely hazardous pollutants from new and existing sources (NESHAPS).14 The latter two areas may be administered
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by the states, but authority to promulgate standards and requirements rests with EPA. The first area — control for ambient air quality — is the basis of most of the subsequent programs examined below.
The Clean Air Act charges EPA with the responsibility for identifying pollutants and their known control techniques,15 and for determining levels of ambient air at which these pollutants have adverse impacts on health and welfare.16 EPA's determination has resulted in the promulgation of primary and secondary national ambient air quality standards (NAAQS). NAAQS have been promulgated for sulfur oxides, particulate matter, carbon monoxide, hydrocarbons, photochemical oxidants, nitrogen dioxide, and lead.17
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Each state is required to determine whether air quality for each NAAQS pollutant in each area of the state meets or exceeds the NAAQS promulgated by EPA.18 On the basis of this determination, each area within a state is designated by EPA as attainment, non-attainment or unclassifiable. The designation is made for each NAAQS pollutant. Thus, a single area may be attainment for one pollutent, but at the same time, non-attainment for another pollutant. Significant consequences for industry flow from this initial designation.19
For areas designated as non-attainment, states are given the responsibility of seeing that NAAQS are attained and maintained through development and submittal to EPA of a State Implementation Plan (SIP).20 A SIP must meet specific criteria set forth in the Clean Air Act and EPA's regulations.21 Beyond these criteria, however, a state may design its own air quality control program to contain more stringent requirements than those required by federal law. If a state fails to adopt an adequate SIP, the Administrator of EPA (Administrator) may promulgate the SIP.22
For areas designated as attainment or unclassifiable for a pollutant, the regulatory focus is to prevent significant deterioration in air quality (PSD). EPA has established a
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nationally applicable SIP for this program. As states develop their own PSD programs, they are substituted in the SIP for EPA's program.
Since designations are made for each pollutant within each area, an area may be subject to PSD requirements for pollutants which do not violate NAAQS and non-attainment requirements for pollutants which do.
A visibility protection program is presently being developed by the states pursuant to EPA regulations.23 The purpose of this program is to meet the national goal of assuring reasonable progress toward the prevention of any future, and the remedying of any existing impairment of visibility in certain federally designated areas. These new requirements will apply without regard to the designation of an area.
Let us assume that a mineral resource company has targeted an area for some form of development which may involve emissions of various air pollutants from new or existing sources. The project manager has been asked to evaluate the types of air permits and control requirements which may be necessary and to advise management on available options for minimizing risk and delay. Our manager intuitively senses the crucial importance of air quality designations in the project area and surrounding areas and quickly determines that the area is designated as attainment or unclassifiable for most pollutants and non-attainment for several others. There are national parks, monuments, or wilderness areas within the state, but fortunately there are none overlying the mineral resource development sites. What lies ahead?
B. PSD Requirements.
The federal PSD regulations24 are designed to implement Part C of Title I of the Act25 by establishing a pre-construction permit program. The current regulations apply in all areas designated as attainment or unclassifiable unless they have been replaced by an approved state program.
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earlier versions, the current regulations have been designed to exclude many sources from direct coverage. For those which are included, however, the program will constitute an expensive, time-consuming process. Unfortunately, even for those projects which cannot escape the PSD net, results of the process are often unpredictable.
The PSD program has two major components which together "prevent significant deterioration". These components are:
-selection of emission limitations...
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